Makarchuk v. Dominico et al
Filing
16
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 14 in full. Petition 1 is DISMISSED WITH PREJUDICE. Motion to appear before the Court 15 is DENIED. A certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 5/25/2016. Mailed to Makarchuk. (TAG, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
GORDON MAKARCHUK,
FILED
MAY 2 5 2016
Clerk, U S District Court
District Of Montana
Missoula
CV 14-255-M-DLC-JCL
Petitioner,
ORDER
vs.
LEROY KIRKEGARD; ATTORNEY
GENERAL OF THE STATE OF
MONTANA,
Respondents.
United States Magistrate Judge Jeremiah C. Lynch entered his Findings and
Recommendations on March 1, 2016, recommending dismissal of Petitioner
Gordon Makarchuk's ("Makarchuk") petition for writ of habeas corpus under 28
U.S.C. § 2254. Makarchuk filed objections and is therefore entitled to de novo
review of those findings and recommendations to which he specifically objects.
28 U.S.C. § 636(b)(l)(C). This Court reviews for clear error those findings and
recommendations to which no party objects. See McDonnell Douglas Corp. v.
Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981); Thomas v.
Arn, 474 U.S. 140, 149 (1985). Clear error exists ifthe Court is left with a
"definite and firm conviction that a mistake has been committed." United States v.
Syrax, 235 F.3d 422, 427 (9th Cir. 2000) (citations omitted).
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Upon review of his objections, the Court finds that Makarchuk fails to raise
any objection to the legal reasoning applied in the Findings and
Recommendations. Instead, Makarchuk lists three "critical errors in the Court's
findings that effect [sic] the recommendation." (Doc. 15 at 1.) These alleged
errors being: (1) "there were no chemical odors on my person from the booking
report"; (2) "there was no camper trailer but rather a trailer and pickup camper";
and (3) "Robin Grosswiler [phone number] gave consent to search entire premesis
[sic] before the warrant including camper and trailer, having employee cut lock off
of (tool) trailer." (Id.) These supposed errors, however, fail to undermine Judge
Lynch's legal conclusion that Makarchuk's petition should be dismissed as
procedurally defaulted.
Nonetheless, it could be argued that these errors support a claim of actual
innocence and Makarchuk's petition should be heard on the merits. See Smith v.
Baldwin, 510 F.3d 1127, 1139-1140 (9th Cir. 2007) (stating that a petitioner may
overcome procedural default by presenting sufficient evidence demonstrating that
"it is more likely than not that no reasonable juror would convict him of the
relevant crime"). Here, Makarchuk was convicted of operating a clandestine drug
laboratory. The alleged factual errors put forth by Makarchuk pale in comparison
to the mountain of evidence offered against him at trial. Notably, the jury heard
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testimony that: ( 1) Makarchuk smelled like a methamphetamine lab when he was
arrested outside of his camper; (2) multiple items commonly used to manufacture
methamphetamine were found in and around his camper; and (3) a
methamphetamine lab had been operating for some time in the camper. Based
upon this evidence, a claim of actual innocence cannot succeed.
Lastly, Makarchuk moves the Court to allow him to appear in person and
provide an explanation for the evidence presented at trial. Because the Court is
satisfied that Makarchuk cannot maintain his claim of actual innocence, his motion
will be denied. There being no clear error in the remainder of Judge Lynch's
Findings and Recommendations, IT IS ORDERED that:
(1) Judge Lynch's Findings and Recommendations (Doc. 14) are
ADOPTED IN FULL.
(2) Makarchuk's petition (Doc. 1) is DISMISSED WITH
PREJUDICE as procedurally defaulted without excuse.
(3) Makarchuk's motion to appear before the Court (Doc. 15) is DENIED.
(4) The Clerk of Court is directed to enter, by separate document, a
judgment of dismissal.
(5) A certificate of appealability is DENIED.
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Dated this
2S~day of May, 2016.
Dana L. Christensen, Chief Judge
United States District Court
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